Enemies of Arpaio Fight Lawyers in 9th Circuit

(CN) – The 9th Circuit seemed unlikely at a hearing to clear former Maricopa County attorneys from claims that they targeted various officials and judges on behalf of Sheriff Joe Arpaio. The claims stem from a raft of complaints filed in 2010, accusing Arpaio and his lackeys of bringing baseless criminal investigations, including a complaint for alleged violations of federal anti-racketeering law, to retaliate against certain judges for court rulings and certain county employees for budget cuts. The RICO complaint was later dismissed. A federal judge in Phoenix, Ariz., ultimately consolidated seven actions brought by retired Superior Court Judge Kenneth Fields; Superior Court Judge Gary Donahoe; Deputy County Manager Sandi Wilson; County Supervisor Don Stapley; Sue Schuerman, a deputy administrator to Stapley; and several others. Former Maricopa County Attorney Andrew Thomas and former Maricopa County Deputy Attorney Lisa Aubuchon claimed that they had prosecutorial immunity, but U.S. District Judge Neil Wake upheld the claims against them last year. Wake had said the RICO action brought against the plaintiffs had “no basis of governmental enforcement under RICO itself.” The lawyers sought relief from the 9th Circuit, but a three-judge panel in San Francisco seemed unlikely at a hearing Thursday to take their side. “This does not appear to me as though this complaint was filtered through a neutral and detached neutral body,” Judge William Fletcher, referring to the 2009 RICO complaint. “This was a blow that was struck then withdrawn. This does not look like serious litigation. This looks like, ‘I’m going to attack you with a lawsuit that I will then voluntarily withdraw.'” Aubuchon’s attorney, Douglas Drury, questioned whether that evidence was subject to judicial review. “Certainly there are a lot of allegations that a lot of what the sheriff’s office did was for publicity, but the court’s specific allegation here that this was just sort of a hit-and-run type of thing is not stated in the complaint,” Drury said. Judge Ronald Gould asked Drury if the “ambiguous” nature of the complaint would take it out of the realm of absolute immunity, since there “is an allegation that parts of this complaint are for the benefit not of the county, but for the benefit of the sheriff or for the prosecutor personally.” Thomas, for example, allegedly faced a threat against his bar license as well as a personal threat against his wife. He ultimately was disbarred in April 2012. Drury insisted, however, that “those factual allegations were made in the context of this ongoing battle between the various departments, and what is not alleged in the complaint is that there was personal relief sought.” Judge Morgan Christen said the ambiguity of the complaint makes it difficult to discern whether this conduct stemmed from “a personal vendetta, or a war as Judge Fletcher described it, or something else.” For Thomas’ lawyer, Sarah Barnes, it is unambiguous “that there is not a prayer for relief for personal damages to be given to Mr. Thomas or Sheriff Arpaio in their personal capacities.” When Christen said the argument would be stronger if the RICO complaint had been filed under state law as opposed to federal law, Barnes argued that “prosecutors and judges alike are allowed to make mistakes without the fear of being liable civilly — personally and civilly – for those damages.” “Sure,” Christen interrupted, “but they can’t have it both ways. And this is a problem that’s been plaguing me as I look at these pleadings because your clients aren’t laypeople. They are lawyers, so surely they appreciate the difference between filing in state and federal court.” Larry Wulken, appearing on behalf of plaintiff Stapley, said that the federal judge had correctly found that Thomas and Aubuchon acted outside of their authority. “There is something very antithetical to the notion that a prosecutor can file whatever the heck he wants in any court he wants that says, ‘well because I’m the prosecutor I can do that, I can make mistakes, I can be malicious,'” Wulken said. “I understand that the immunity should be applied broadly, but not when the prosecutor is skirting his authority.”